CEQA-Based Facial Challenges To Map Act Ordinances: Relevant Recent Statute of Limitations Developments

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In an earlier post (“Ten CEQA Litigation Mistakes To Avoid,” September 13, 2011), one bullet point discussed the potential pitfall of concurrently-applicable non-CEQA limitations periods barring CEQA claims. Numerous cases have held CEQA claims that are timely-filed and served under CEQA’s statute of limitations are nonetheless time-barred for petitioners’ failure to also comply with the concurrently-applicable 90-day service-of-summons requirement imposed by the Subdivision Map Act’s broadly-applicable statute of limitations, Government Code, § 66499.37. That statute applies whenever an action – including, but not limited to, a CEQA action – seeks to set aside a “subdivision-related” decision.

In a recent non-CEQA action that bears on this significant issue, the First District Court of Appeal confirmed that “subdivision-related” decisions subject to the Map Act’s 90-day statute of limitations include local agency legislative enactments adopted pursuant to the authority of the Map Act. (Aiuto v. City and County of San Francisco (12/15/11) 201 Cal.App.4th 1347.) The Court there rejected, as time-barred under Government Code § 66494.37, plaintiffs’ facial challenges (asserting takings, state law preemption and civil rights theories) to the City’s adoption of an amendment to its Subdivision Code concerning the applicability of restrictions imposed under its Below-Market-Rate Condominium Conversion Program, a local enactment it had adopted pursuant to the authority of the Map Act.

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